A NAWHA COUNTY Telephone (304) 357-0101 Fax (304) 357?0788 Post Of?ce Box 3627 Charleston, West Virginia 25336 Henry C. Shores W. Kent Carper Ben Salango Commissioner management) . Commissioner West Virginia Ethics Commission Attn: Kimberly Weber, interim Director 210 Brooks Street, Suite 300 Charleston, WV 25301 RE: Request for an Advisory Opinion re Town of Harper?s Ferry Conciliation Agreements The purpose of this letter is to request an advisory opinion regarding the applicability of the Ethics Commission?s recently issued conciliation agreements and accompanying orders regarding the Harpers Ferry town council election of 2019. Specifically, i seek an opinion on whether the Commission?s findings that the ethics act was violated could be construed to apply when an elected official (specifically, a county commissioner) is required by law to serve on the Board of Canvasser?s during an election canvass or during an election recount where the county commissioner is a candidate on the ballot. in West Virginia, the County Commissioners of each County serve as the Board of Canvassers. Code 3?6?9. The Supreme Court has held, ?The duty of the Board of Canvassers is to canvass the returns of the election and accurately ascertain the result thereof.? State ex rel. Thompson v. Fry, 137 W. Va. 321, 337?38, 71 449, 458 (1952). The Board of Canvassers presides over any recounts that are demanded,_and upon conclusion of the canvass, declares and certifies the results. Code 3?6?9, 3?6?10. Significantly, the Supreme Court has held that the duties of the Board of Canvassers are ministerial, notjudiciai, in nature. Varney v. County Court, 102 W. Va. 325, 135 S.E. 179 (W. Va. 1926). Although the Ethics Commission?s agreements and orders in the Harper?s Ferry matter address an elected official?s participation in an election contest, i believe further clarification is needed on whether the Commission?s determinations could be construed to apply to a county commissioner that is serving on the Board of Canvassers for an election during which she or he is a candidate either during the initial canvass of the returns or during a requested recount.1 1 The West Virginia Code already addresses recusai of a County Commission in contested elections: "In all cases of contested eiections, the county commission shall be the judge of the eiection, qualifications and returns of their own members and of all county and district officers: Provided, That a member of the county commission whose 1 For example, under the Commission?s findings in Harpers Ferry, would it now be a potential Violation of the ethics act for a county commissioner to serve on the Board of- Canvassers for an election where he or she is a candidate on the ballot? What if a recount is requested in a race where a commissioner is a candidate? The Harpers Ferry agreements, if taken to the furthest extreme, have potentially perilous ramifications. Requiring commissioners to recuse themselves in an election where he or she is on the ballot would disqualify 1/3 of the Board of Canvassers in all 55 counties - and in some cases, it would disqualify two commissioners and potentially destroy a quorum. The recusal of even one member of the Board of Canvassers would cause significant complications as, under West Virginia Code, there is no mechanism to appoint a temporary member to the Board of Canvassers in the event of disqualification, recusal, incapacity or simple absence. The Kanawha County Commission has, for several years, raised the issue of temporary or emergency appointments on our annual legislative agenda. Still, to date those requests haVe been rebuffed by the West Virginia Legislature. Further, County Commissioners are required by code to perform several additional duties related to an election w?such as approving polling place locations, consolidation of voting precincts, approving the hours and locations of early voting locations, and purchasing voting equipment and supplies. If a county commissioner is a candidate in an upcoming election, should they now be concerned about potential ethics violations when voting on these matters? Taken even a step further, the Secretary of State is the chief election officer who sets policy and enacts rules and regulations regarding all elections. Could those necessary actions now be challenged as potential ethics act violations by an interested party? in more than 24 years as Commissioner, have never missed a canvass, as believe it to be one of the most critical constitutional duties of my office. That is why i strongly feel the applicability of the Ethics Commission?s findings regarding the Harpers Ferry election must be made clear. 1 do not believe the Harpers Ferry case should be construed to require (or to allow) therecusal of a County Commissioner from performing his or her ministerial duties as a member of the Board of Canvassers. These duties are required by law and are necessary to help protect the integrity ofthe election process. In many ways, a canvass is a blind test as the Board does not know who the vote counts for it only must determine if a ballot is proper and should be counted. Because of the pandemic we are facing perhaps the most difficult General Election in the history ofour democracy. The increase in absentee ballots means all 55 canvasses will last much longer than usual. Serving on a Canvass is one of the most tedious, laborious, and thankless jobs a County Commissioner is required to perform. Only poll workers and the employees of the clerk?s-office worker harder with less recognition! I believe the Harper?s Ferry opinion, if not clarified, could serve as a justification (or an enticing excuse) for many commissioners to recuse themselves from serving on the Board of Canvassers during the upcoming General Election Canvass. It could also serve as justification for baseless and election is being contested may not participate in judging the election, qualifications and returns. W. Va. Code 3? 7-6 unfounded ethics complaints against county commissioners. i do not believe this outcome was contemplated or intended by the Ethics Commission. In closing, I appreciate your time and consideration of this request. Please contact me if the Commission would like additional information or if further explanation would be helpful to the Commission?s review. Sincerely, W. Kent Carper President, Kanawha County Commission 7: .2